“Serious violations”– use of lethal force by police and failure to investigate constitute violations of protection of right to life
Pârvu v Romania ECHR Application No. 13326/18 (30 August 2022)
Summary
Ms Ana-Bianca Parvu (Applicant) lodged proceedings in the European Court of Human Rights (ECHR) under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention) against Romania on 7 March 2018. The ECHR unanimously held that that the Applicant’s husband was killed by police in breach of Article 2 of the Convention, being the right to life, and that the national authorities subsequently failed to carry out an effective investigation into the death of her husband.
Facts
The Applicant’s husband, Mr Sorin Parvu, was killed during an incident on 26 September 2009, when police mistook Mr Parvu for an international fugitive they had been attempting to intercept and arrest. The government claimed that the armed police, dressed as civilians, ordered Mr Parvu to get out of the car and identified themselves as police, while other eyewitnesses claimed that the police opened fire without warning. Mr Parvu was shot and killed by a police officer (D.G) after he attempted to reverse the car and hit an unmarked police vehicle.
A criminal investigation was opened against Mr Parvu for the attempted murder of a police officer on the same day as the incident but was closed due to his death. The investigation into the shooting of Mr Parvu lasted 11 years, from September 2009 to April 2021. On four occasions, the prosecutor deemed the death accidental and decided to terminate the criminal investigation. Upon appeal from the Applicant, the Court of Appeal compelled the prosecutor’s office to continue with the investigation, citing incompleteness in respect of legal and factual aspects of the case.
The criminal investigation into the death of Mr Parvu was ended on 25 June 2020 on the grounds that the shooting was accidental and that D.G. had been acting in self-defence to Mr Parvu’s dangerous behaviour of moving his car back and forth. Specifically, D.G.’s action of cocking his gun in response to Mr Parvu’s action of driving in a way that could intentionally hit the police officers was held to be legitimate self-defence, and it was determined that the cocked pistol had been discharged unintentionally when D.G. had subsequently lost his balance because his elbow was hit by the car.
On 8 April 2021 the Applicant’s fifth appeal was dismissed by the Braila County Court which found that there was no contradiction in the prosecutor’s decision that the killing arose out of both accident and self-defence.
Application
The application to the ECHR was based on the following submissions by the Applicant:
the police had made a gross error in attempting to kill Mr Parvu by mistaking him for someone else (an international criminal they had been tracking over months); and
the police used unnecessary and excessive lethal force against Mr Parvu during a police operation wherein no members of the police were dressed in identifiable clothing.
The government submitted that the authorities had complied with all requirements of Article 2 of the Convention when organising and carrying out the intervention which resulted in Mr Parvu’s death. It also submitted that the police had acted in response to Mr Parvu’s refusal to obey the requests of police officers and attempted to escape “by endangering their lives and physical integrity” (at [70]).
Decision
The ECHR found that both the killing of Mr Parvu and the significant deficiencies in the investigation amounted to breaches of Article 2 of the Convention.
Absolute necessity of lethal force
The ECHR noted that a killing may be justified even when based on an honest belief that it is valid which turns out to be mistaken. However, the ECHR held that in order for a killing to be justified, it is “incumbent on the State to provide a plausible explanation of the events leading to the death of a person, respectively to demonstrate that the use of potentially lethal force has to be regarded as ‘absolutely necessary’ and justified under paragraph 2 Article” (at [72]).
When handing down its decision in relation to the killing, the ECHR expressed “serious doubts” about the accidental nature of the shooting, and the honest belief of D.G. that the cocking of the firearm was absolutely necessary for self-defence based on the evidence before it (at [81]). It was noted that when the lethal shot was fired, Mr Parvu’s car was stopped, and the police officers had managed to avoid impact, subtracting from any potential argument of clear and immediate danger.
Adequate investigation
The ECHR concluded that the domestic authorities had subsequently failed to discharge the procedural obligation under Article 2 to conduct an effective investigation, in particular because of the “lack of reasonable expedition… and lack of thoroughness” (at [98]).
The investigation had spanned over 11 years, however there was no consideration given to critical issues such as the misidentification of the target, the fact that D.G. was not part of the specialised task force tasked with immobilising the target, the fact that police were dressed as civilians, and the lack of mitigating measures implemented as part of the operation to minimise risk of killing an innocent person. Despite two orders by domestic courts, investigators had failed to seek expert opinion from a specialist neurologist to determine whether an accidental shooting was possible as claimed.
The Applicant was awarded EUR 65,000 plus tax in respect of non-pecuniary damages, and EUR 8,630 plus tax in respect of costs and expenses to be paid by Romania.
Commentary
This decision is reflective of the ECHR’s concern with the use of lethal force and a state’s ability to account for the actions of authorities when using such force. The ECHR emphasised this concern through its consideration of whether the operation was sufficiently planned and regulated as to protect the right to human life as much as possible. The ECHR acknowledged that while force is sometimes necessary, there must be adequate legislative and administrative safeguards against abuse of force, and appropriate investigations should be conducted in order to prevent arbitrariness.
The full case can be read here.
Case note prepared by Olivia Newbold and Quentin Wong at DLA Piper